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2003 DIGILAW 2166 (MAD)

Tmt. Pakkirathammal v. Tmt. Velambal and others

2003-12-30

S.SARDAR ZACKRIA HUSSAIN

body2003
ORDER: The plaintiff in O.S.No.576 of 1986, who is the second defendant in O.S.No.591 of 1997 and the petitioner in C.T.O.P.No.1 of 1997 on the file of the II Additional District Munsif Court, Tiruchirapalli is the revision petitioner. 2. This civil revision petition is filed against the order dated 25.10.2002, as per which the trial Court directed to take up C.T.O.P.No.1 of 1997 filed under Sec.9 of the City Tenants Protection Act, for disposal at the first instance. The order is challenged in this civil revision petition by the tenant, who is the plaintiff in the earlier suit O.S.No.576 of 1986 and second defendant in the latter suit O.S.No.591 of 1997. 3. The point for consideration is as to whether such order of the trial Court is just and proper? 4. The revision petitioner filed the suit O.S.No.576 of 1986 for recovery of Rss3,734 due on the hand loan. The suit O.S.No.591 of 1997 (O.S.No.349 of 1987) was filed by one Nataraja Pillai and on his death continued by his wife and son as his legal representatives claiming that the revision petitioner, who is the second defendant in that suit, is a tenant. During the pendency of the latter suit, the revision petitioner filed C.T.O.P.No.1 of 1988 which was renumbered as C.T.O.P.No.1 of 1997 under Sec.9 of the City Tenants Protection Act. 5. It appears that there have been an order for joint trial Court of the above suits and the C.T.O.P. by the District Court, Tiruchirapalli and as such, the order of the trial Court to take up the petition filed under Sec.9 of the City Tenants Protection Act at the first instance is not proper according to the learned counsel for the revision petitioner. The learned counsel for the revision petitioner further argued that since the respondents denied the tenancy of the revision petitioner, the order of the trial Court to take up the petition filed under Sec.9 of the City Tenants Protection Act at the first instance is not proper. 6. The learned counsel for the second respondent contended that inasmuch as the revision petitioner filed the petition under Section 9 of the City Tenants Protection Act in C.T.O.P.No.1 of 1988 renumbered as 1 of 1997, the order of the trial Court to take up the said petition at the first instance has been properly ordered and it requires no change. 7. 7. The revision petitioner filed the suit O.S.No.576 of 1986 stating that the revision petitioner is running a rice-mill (Packiya Vilas Rice Mill) in Uyyakondanthirumalai and the site of the mill belongs to one Nataraja Pillai to whom she is paying monthly ground rent of Rs.46 and the lease is oral. In the written statement filed by the deceased Nataraja Pillai, the tenancy was disputed. 8. The other suit O.s.No.591 of 1997 (O.S.No.349 of 1987) was filed by the said Nataraja Pillai for recovery of vacant possession of the suit property after removing the superstructure stating that he leased the suit vacant site to one Murugan for the purpose of running his rice-mill with his machinery for a period of 10 years and after three years and 8 months, the said Murugaiyan wanted to surrender possession. At this stage, the first defendant, Sundarajan purchased the superstructure with the rice-mill machinery and accordingly, the property was leased to the first defendant Sundarajan on 27.10.1971 for a period of 10 years with conditions as stated in paragraph 4 of the plaint in O.S.No.591 of 1997 (O.S.No.349 of 1987). It is further stated that in order to discharge the mortgage amount executed by the first defendant Sundarajan to Murugaiyan, the first defendant Sundarajan sold the machinery including the superstructure to the second defendant Pakkiathammal, viz., the revision petitioner herein. Since the possession was not handed over, the said suit was filed stating that the revision petitioner did not attorn the tenancy to the plaintiff and also not paid the rent. 9. The revision petitioner filed C.T.O.P.No.1 of 1988 renumbered as 1 of 1997 stating that inasmuch as she purchased the superstructure with machinery on 11.2.1979 from the first defendant Sundarajan for Rs.17,000 she is entitled to claim the benefits under Sec.9 of the City Tenants Protection Act and that she is a tenant under the plaintiff. Therefore, it is clear that definite case has been set out in that petition that the revision petitioner is a tenant under the plaintiff. 10. The trial Court considering all these aspects and inasmuch as the petition was filed under Sec.9 of the City Tenants Protection Act claiming that the revision petitioner is the tenant under the plaintiff, passed the order set out above that C.T.O.P.No.1 of 1997 filed under Sec.9 of the City Tenants Protection Act has to be taken for disposal at the first instance. 11. The learned counsel for the revision petitioner argued that inasmuch as the tenancy is disputed, the order of that the trial Court to take up the petition filed under Sec.9 of the City Tenants Protection Act at the first instance for disposal is not proper. 12. The learned counsel for the second respondent contended that inasmuch as the said petition was filed by the revision petitioner claiming that she is a tenant under the plaintiff, the trial Court has made the order correctly. 13. The learned counsel for the second respondent relied on the decisions reported in V.M.Subramania Mudaliar and Sons and two others v. Sri Bhavasarakshriya Seva Samaj, (1997)1 M.L.J. 414 : (1997)1 C.T.C. 102 . In the above decision, this Court relying on the judgment of this Court in Pudukkulam alias Kuttikulam Vahayara Trust v. T.Kamalambal, (1988)1 L.W. 187 , has observed: “Application filed under Sec.9 has to be disposed of in first instance and if tenant succeeds in that application and complies with provisions of Sec.9 suit has to be disposed of prior to the disposal of main suit of landlord. No need to try main suit as well as application under Sec.9 of the Tamil Nadu City Tenants Protection Act simultaneously.” 14. The fact remains that Nataraja Pillai, who filed the suit O.S. No.591 of 1997 (O.S.No.349 of 1987) for ejectment, leased the suit vacant site to one Murugaiyan for the purpose of running rice-mill and who in turn, it appears, sold the rice-mill as well as the superstructure to the first defendant Sundarajan and who in turn sold the same to the revision petitioner to discharge the mortgage executed by him in favour of Murugaiyan and therefore, Nataraja Pillai filed the ejectment to evict both of them. The revision petitioner has filed the petition C.T.O.P.No.1 of 1988 renumbered as 1 of 1997 under Sec.9 of the City Tenants Protection Act claiming that she is the tenant of the suit vacant site and that she has purchased the superstructure including the machinery of rice-mill sold by Sundarajan. The revision petitioner has filed the petition C.T.O.P.No.1 of 1988 renumbered as 1 of 1997 under Sec.9 of the City Tenants Protection Act claiming that she is the tenant of the suit vacant site and that she has purchased the superstructure including the machinery of rice-mill sold by Sundarajan. Despite the said definite stand taken by the revision petitioner that she is the tenant of the suit vacant suite and also filed petition as such, in which an order has been passed that the said petition will be taken up at the first instance, it is not open to the revision petitioner to contend that such order made is not proper in view of the fact that her tendency order made is not proper in view of the fact that her tenancy is disputed. Inasmuch as the revision petitioner filed the petition under Sec.9 of the City Tenants Protection Act claiming the benefits under the said Act, that petition was ordered to be taken up for disposal at the first instance and depending on the outcome of the order in the petition to be taken up at the first instance, the main suit will have to be disposed. 15. Therefore, the trail Court, considering all these aspects, has rightly ordered that C.T.O.P.No.1 of 1997 is to be taken up for disposal at the first instance and it does not call for any interference and the order is to be confirmed. 16. In the result, this civil revision petition is dismissed with costs. The order of the II Additional District Munsif Court, Tiruchirapalli dated 25.10.2002 is confirmed. Consequently, the petition in C.M.P.No.19472 of 2002 is also dismissed.